United States District Court, S.D. New York
REPORT AND RECOMMENDATION
GABRIEL W. GORENSTEIN, Magistrate Judge.
Victor Perez, currently an inmate at Five Points Correctional Facility in Romulus, New York, brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Perez was convicted of two counts of robbery in the first degree, N.Y. Penal Law § 160.15, and one count of robbery in the second degree, N.Y. Penal Law § 160.10, following a jury trial in New York State Supreme Court in June 2008. After trial, Perez was sentenced to two concurrent terms of twenty-five years in prison for the first-degree robbery counts and a concurrent term of fifteen years in prison for the second-degree robbery count, to be followed by five years of postsupervision release. For the following reasons, Perez's petition should be denied.
A detailed description of the evidence presented at trial is not necessary to a resolution of this case. Accordingly, we summarize the trial evidence only briefly.
On May 15, 2007, Rodney Paige was robbed in Lower Manhattan by three men who followed and approached him on bicycles, during the course of which he was shot three times. See Appellate Division Brief of Defendant-Appellant Victor Perez (annexed as Ex. C to Declaration in Opposition to Petition for a Writ of Habeas Corpus, filed July 17, 2013 (Docket # 15) ("Gill Decl.")) ("Def. App. Br."), 3-4. The robbery and shooting was witnessed by Ashley and Joshua Bermudez, residents of a nearby fifth-floor apartment. Id . at 4. In addition, another witness to the incident named Thomas Braunson told police at the scene that Perez, whom he knew from the neighborhood, was one of the robbers. (Braunson: Tr. 240-41, 265). Braunson then returned to the police precinct and gave the police Perez's name and address. (Braunson: Tr. 253; Isolano: Tr. 340-41). Braunson, who had multiple prior convictions and pending charges, testified at trial pursuant to a cooperation agreement. (Braunson: Tr 257-59).
Paige reported to police that the men who shot him were on bicycles and that one of them had a yellow shirt and braids. (Collins: Tr. 272). Shortly thereafter, an officer stopped an individual named Joseph Ramirez who was in the vicinity and matched that description. (Collins: Tr. 173-75). Ramirez had several cellphones on him, which were confiscated by the police. (Collins: Tr.174, 185). That evening, one of the phones rang and the caller identification indicated "Red, " Perez's nickname. (Isolano: Tr. 345-46). The police later determined that the number belonged to Perez's cellphone. (Isolano: Tr. 345-46). In the 30 days before the shooting, Perez and Ramirez had called each other 36 times. (Cannata: Tr. 427).
Roughly three months after the shooting, Perez turned himself in to police at the Seventh Precinct. Def. App. Br. at 5. Perez was indicted on November 1, 2007, for attempted seconddegree murder, first-degree assault, two counts of first-degree robbery, and one count of seconddegree robbery. See Appellate Division Brief for Respondent (annexed as Ex. D to Gill Decl.) ("Resp. App. Br." at 3. Perez was convicted at trial of two counts of robbery in the first degree and one count of robbery in the second degree. See Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed Feb. 28, 2013 (Docket # 2) ("Pet."), 2.
A. The Lineup and Wade Hearing
The police held a lineup about six week after Perez turned himself in. See Def. App. Br. at 9. Paige positively identified Perez at the lineup. Id . at 12. Ashley Bermudez stated "I think it's number one, " referring to Perez's position in the lineup. Id . Joshua Bermudez was unable to identify anyone in the lineup. Id.
On January 8, 2008, a hearing pursuant to United States v. Wade , 388 U.S. 218 (1967), was held. Perez testified at the hearing as did Detective Nicholas Isolano, the officer assigned to investigate the robbery and shooting of Paige. (Isolano: W. 104). Isolano testified on direct examination that three people viewed the lineup: Paige and two witnesses whom he did not identify by name. (Isolano: W. 117). Isolano testified that when he brought Perez into the precinct for the lineup, he and Perez "came in through the rear of the building into the elevator and up to the second floor, " and that from where the witnesses were situated in the precinct, they would not have had an opportunity to "view that particular route to the second floor." (Isolano: W. 117-18). On cross-examination, Isolano testified that none of the witnesses saw Perez in the stationhouse before viewing him at the lineup. (Isolano: W. 136-37). When asked if Perez saw Paige and Paige saw Perez, and whether the two made eye contact, Isolano responded, "[n]ot to my knowledge." (Isolano: W. 137).
Perez testified that when he entered the stationhouse for the lineup, he was in handcuffs and the two detectives who were with him "told [him] to stop and turn around" as he was walking toward the elevator after entering. (Perez: W. 248). He testified that he entered the stationhouse through the back door and "saw somebody in a wheelchair... coming from the front of the police station." Id . Perez testified that eventually he came to be about ten feet away from the person in the wheelchair. (Perez: W. 249). He also testified that one detective was "holding [his] arm, grabbing [his] arm" and that he was handcuffed "from the back." (Perez: W. 250). He testified that he made eye contact with the person in the wheelchair for "[c]lose to a minute." Id . The person in the wheelchair did not say anything or make any gestures, according to Perez, but "[h]is eyes opened up" when he saw Perez. (Perez: W. 250-51). According to Perez, after he made eye contact with the person in the wheelchair, Detective Isolano "told [Perez] to turn around." Id . Perez testified that, after telling him to turn around, Isolano "screamed to [the] other officers and told the other officers to turn [the person in the wheelchair] around." (Perez: W. 251-52). When prompted by Justice Uviller, Perez clarified that when the detective told him to turn around, he was "facing straight ahead towards the door, " meaning "[t]he front door." (Perez: W. 252-53). That is, he was "looking straight ahead towards the door to come inside the precinct." (Perez: W. 253-54). Inside the elevator, Perez "asked [the detective] what was all that about" and the detective said "that was the victim." (Perez: W. 255).
On cross-examination, Perez testified that, as he walked into the stationhouse from the back, Paige was simultaneously entering the building "from the front, " though Perez did not know at that moment that Paige was "the victim." (Perez: W. 256). Perez did not recognize the person, and testified that he had never seen that person before that day. Id . Perez testified that when he first made eye contact with the person in the wheelchair, they were approximately 20 to 25 feet apart. (Perez: W. 257-58). Perez stated that they eventually came to be about ten feet apart. (Perez: W. 260). He testified that at that point, while he and the detective were waiting for the elevator, the person in the wheelchair was looking right at him but did not say anything. Id . According to Perez, approximately 25 minutes passed between the event he had just described and the time he saw his attorneys, at which point he told them that he thought he had just seen the victim. (Perez: W. 261).
The People re-called Isolano as a rebuttal witness. (W. 269). Isolano testified that when he brought Perez into the stationhouse, Paige was visible in the waiting area but that Paige had his back to them, did not move, and never made eye contact with Perez. (W. 279-83). Paige had never indicated to Isolano that Paige had seen Perez prior to the lineup. (Isolano: W. 284). Isolano testified that at some point Perez said, "[t]his guy is in a wheelchair?" to which Isolano responded, "[y]es, he is, " prompting Perez to say, "[t]hat's fucked up." (Isolano: W. 285). However, Perez never indicated what he meant by that statement. Id . Isolano also testified that no attorney ever told him that Perez had seen the victim. (Isolano: W. 286). Isolano testified that he only told Perez to "[f]ace the elevator" when they entered the building and did not call out to anyone to turn somebody around. (Isolano: W. 290). According to Isolano, the elevator opened up about twenty seconds after the time he and Perez entered the building. Id . Isolano testified that when he told Perez to face the elevator, Isolano had already seen the person in the wheelchair. (Isolano: W. 290-91). Isolano testified that the person in the wheelchair never told him at any time that he had seen Perez in the precinct. (Isolano: W. 291).
On rebuttal cross-examination, Isolano testified that he misunderstood a prior question asking whether, from where the witnesses were situated in the stationhouse, they would have had an opportunity to view Perez's route to the second floor. He had answered "no" to this question earlier in the hearing, but on cross-examination, he agreed that he could see the lobby where Paige was sitting as he entered the stationhouse with Perez. (Isolano: W. 299-302). He testified that he did not tell Perez to stop and turn around; nor did he tell other officers to turn Paige around. (Isolano: W. 304).
Justice Uviller issued a written decision denying the motion to suppress in which she credited the testimony of Isolano. Resp. App. Br. 10. The judge specifically credited Isolano's testimony that Paige's wheelchair was facing away from Perez and that Paige was not in a position to view Perez before the lineup. Id.
B. The Motions to Admit Expert Testimony
On November 30, 2007, Perez filed a motion that sought, inter alia, permission to call an expert witness at trial to provide testimony "on the subject of the inherent unreliability of eyewitness identifications." Def. App. Br. at 13. The court "denied the motion, but explained it should be renewed at the outset of trial." Id . On June 11, 2008, just prior to the start of trial, Perez filed a renewed motion to admit this expert testimony. Id . Justice Edward J. McLaughlin, who was presiding over Perez's trial, denied the motion orally on June 12, 2008, noting that it was not a "one witness identification case" and that the case did not meet the standards set by the New York Court of Appeals for the admission of such testimony. See Transcript of Pre-Trial Proceedings Before the Honorable Edward J. McLaughlin, held June 12, 2008 (annexed to Gill Decl.), 4-6.
C. The Jury's Verdict
The jury convicted Perez of robbery in the first degree and robbery in the second degree but acquitted him of attempted murder in the second degree and assault in the second degree. (Tr. 593-94).
D. The Motion to Set Aside the Verdict and Sentence
Subsequent to the jury's verdict but prior to sentencing, Perez, through counsel, filed a motion to set aside the verdict pursuant to N.Y. Crim. Proc. Law § 330.30(3). See Motion to Set Aside Verdict Pursuant to N.Y. Crim. Proc. Law § 330.30(3), filed Sept. 17, 2008 (annexed as Ex. B to Gill Decl.) ("330 Motion"). The motion argued that Perez's conviction "was based, in material part, on the testimony of Thomas Braunson, who claimed to have witnessed Mr. Perez next to Mr. Paige at the time of the shooting." Id . at 3, ¶ 4. The motion stated that "[n]ew evidence has been discovered since the conclusion of the trial" and that "[i]n the afternoon of September 18, 2008, [counsel for Perez] received an unsolicited voice mail message from a man who identified himself as David Williams, an [emergency medical technician] who was off-duty in the vicinity of the shooting." Id . at 3-4, ¶ 5. According to the motion
[t]he caller stated that he was with Mr. Braunson at the time of the shooting and observed Mr. Braunson's whereabouts. The caller stated that at the time of the shooting, he and Mr. Braunson were not in a position to observe the scene of the shooting, and could only hear gunshots. The caller stated that, as an off-duty EMT, he did not have his equipment or gloves, and did not become involved. The caller stated that he had the opportunity to observe Mr. Braunson and ...